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Police v Luamanuvae [2012] WSSC 4 (8 February 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U


BETWEEN:


POLICE
Prosecution


AND:


SETEFANO LUAMANUVAE
male of Fasitootai and Vaitele Fou
Accused


Counsel: T Toailoa and P Valoia for prosecution
S K Ainu'u for accused
Sentence: 8 February 2012


SENTENCE


Introduction


  1. The accused Setefano Luamanuvae stood trial on 17 and 18 January 2012 before a panel of assessors on the charge of rape and the alternative charge of having sexual intercourse with a girl between the age of 12 and 16 years. The assessors unanimously found the accused guilty of rape and it was therefore unnecessary for them to return a verdict on the lesser and alternative charge of sexual intercourse with a girl between the age of 12 years and 16 years.

Facts


  1. As the version of the events that happened given by the accused in his cautioned statement to the police differs quite markedly in a number of material respects from the version of events given by the victim in her oral testimony, one assumes that the assessors by their verdict must have accepted the version of events given by the victim.
  2. On Tuesday evening 7 June 2011 after 6pm, the victim was returning home after bible class at her church when she met the accused who was jogging along the road. The accused covered the victim's mouth with his hand and took her to the bushes a short distance behind her family's house where he removed her clothes and had sexual intercourse with her without her consent. As a result, the victim was bleeding from her private part.
  3. The same evening, the victim was taken to the hospital where she was admitted for one night. She was discharged the following morning. For the next three days she just lay in bed at home drinking only water and eating a little bit of saimin.
  4. At the time of the offence, the accused was 24 years old and the victim was about 12 years and 10 months old. They are not acquainted but attend the same church. The accused in his cautioned statement also told the police that the victim's older sister is his girlfriend. So the accused and the victim probably know of each other even though they are not acquainted.

Sentencing approach


  1. Prior to 2007, the approach to sentencing in criminal cases taken by the Samoan Courts was to arrive at a sentence by taking into account aggravating and mitigating factors relating to the offending and offender. This may be described as the "intuitive synthesis" approach: Police v Filipo [2011] WSSC 127 at para 28 per Slicer J. This approach has been preferred by the Australian Courts: AB v R [1999] HCA 46; (1999) 198 CLR 111 at paras 15 – 17 per McHugh J which is cited in Police v Filipo [2011] WSSC 127 at para 28.
  2. Since 2007, the Samoan Courts have adopted and applied a different approach to criminal sentencing following the judgment of the New Zealand Court of Appeal in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372. This is the "starting point" approach. This was established for the purpose of Samoan law in Attorney-General v Matalavea [2007] WSCA 8; Police v Faulkner [2007] WSSC 80; Police v Enelagi [2007] WSSC 95. The "starting point" approach involves two steps. The first step is to set a starting point for sentencing. This is done by determining the extent of the criminality of the offending, not the offender. The extent of the criminality of the offending, is determined by taking into account the aggravating and mitigating factors relating to the offending. The outcome of this exercise becomes the starting point for sentencing. The second step of this approach is to take into account the aggravating and mitigating factors relating to the offender. The aggravating factors relating to the offender will result in the starting point being adjusted up and the mitigating factors relating to the offender will result in the starting point being adjusted down. However, the approach is not mechanical, it involves the use of common sense and evaluative judgment to determine the weight or significance to be given to each factor in both steps of the approach. The outcome of this whole exercise is the sentence to be passed on the offender.
  3. In the recent sentencing judgments of Slicer J in Police v Filipo [2011] WSSC 127 and Police v Sione [2011] WSSC 128, His Honour considered and applied the principles and approach adopted by the New Zealand Court of Appeal in R v AM [2010] NZCA 114 which is a sentencing guidelines judgment for sexual violation (rape) and other sexual offending. The approach in R v AM [2010] NZCA 114 is based on the starting point approach established in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 and develops on that approach by setting bands within which ranges of starting points for sentencing in sexual violation offences including rape are provided. The crime of rape carries a maximum penalty of 20 years imprisonments in New Zealand. The said bands are set out in R v AM [2010] NZCA 114 at para [90] as follows:

"Rape band one: 6 – 8 years;

"Rape band two: 7 – 13 years;

"Rape band three: 12 – 18 years; and

"Rape band four: 16 – 20 years."


  1. In paras [37] – [64] of the judgment in R v AM, the Court discussed the various culpability assessment factors which are relevant in placing a rape offending in one of the identified bands. These culpability assessment factors are:
  2. In assessing the culpability or criminality of the offending in a particular case, the Court in R v AM [2010] NZCA 114 at para [79] emphasised that what is required is an evaluative exercise of judgment focusing in a fact-specific way on the culpability of the offender and its effect on the victim.
  3. The Court then explained the said bands by saying at paras [84], [85], [83], [91]:

[84] The proposed band set out ranges of starting points, not final sentence. In the usual way, that starting point will be adjusted up or down to reflect circumstances personal to the offender. It is at this stage that mitigating factors such as youth, mental disability, and earlier good character will be taken into account. It is important that Judges do not diminish this aspect of sentencing. Sentences should reflect personal factors. The point of the guidelines is not to impose a straitjacket on sentencing Judges – quite the reverse. As explained in R v Hessell [2009] NZCA 450, the reduction for a guilty plea should be made as the final step in the sentencing process after the otherwise appropriate sentence has been determined, ie, after other mitigating factors have been taken into account.


"[85] One of the factors in determining placement within a band will be the role of the offender. There will be cases which fall within the most serious band even though the offender is only convicted as a party because of his or her role in inciting, for example, a particularly brutal or cruel rape."


  1. Earlier on at para [83] the Court said;

"[83] There will be cases which are so unusual that they will require a starting point outside of the guidelines (ie, below the bottom of band one.) Where a Judge departs from the guidelines, reasons should be given for the departure.


  1. At para [91], the Court further explained:

[91] Finally, we note that when we refer to the lower end of a band, that encompasses a range from the bottom to the middle of the band. Similarly, a reference to the higher end of the band incorporates a range from the middle to the top of the band.


  1. Examples are then given of cases with starting points at the lower and higher end of each band. These examples provide factual scenarios which would assist in determining the identified band within which a particular rape offending should placed.
  2. It is not possible to set out in this judgment all of the detailed analysis of the approach in R v AM [2010] NZCA 114. It is therefore highly recommended that counsel who practise in the criminal law should read R v AM in full.

This case


  1. This case involves one isolated incident of rape for a brief period. The culpability assessment factors set out in R v AM [2010] NZCA 114 which are relevant here in determining the band, i.e., the range of starting points for sentencing, would be planning and pre-meditation, violence, vulnerability of the victim, and harm to the victim.
  2. Regarding planning and pre-meditation, there was really no planning involved in this offending. Any pre-meditation was also quite limited. This offending is more of an impulsive nature than a planned or pre-meditated one. The accused was jogging along the road when he met the victim who was returning home from bible class. They ended up in the bushes not far from the house of the victim's family where the accused raped the victim.
  3. Regarding vulnerability of the victim, the young age of the victim and the age difference of about 11-12 years between the victim and the accused made her vulnerable to the accused.
  4. Regarding harm to the victim, there was no evidence of physical harm to the victim except for bleeding from her private part. However, there is evidence that the victim was fainting when she was brought home. She was also admitted to the hospital the same night and remained in bed at her home for the next three days on a diet of water and a little bit of saimin. I would also not discount the likelihood that the victim has suffered psychological harm.
  5. Given the above culpability assessment factors, I will place this offending at the higher end of band 1 or the lower end of band 2 as identified in R v AM [2010] NZCA 114 para [37]-[64]. I will therefore take 8½ years imprisonment as the starting point for sentence. The accused is a first offender and I give him credit for that. I would also give the accused credit for the apology by him and his family to the family of the victim which was accepted. The end sentence is 7 years imprisonment and 3 months.

Further comments


  1. I should note here that in R v AM [2010] NZCA 114, the accused who was in his late forties, committed a number of sexual offences on his three granddaughters over a period of years. Two of the granddaughters were aged 3 and 5 years respectively. The age of the third granddaughter is not mentioned. The accused also has 13 previous convictions for offences not serious enough to warrant imprisonment. The accused pleaded guilty to some of the charges but not guilty to one charge of sexual violation by rape and one charge of sexual violation by other unlawful sexual connection. The total sentence imposed by the trial Court was 15 years imprisonment after applying a starting point of 17 years imprisonment. On appeal by the accused against sentence, the Court of Appeal dismissed the appeal.
  2. The rape sentencing cases which were helpfully submitted by counsel for the prosecution show that in Police v Pasami [2011] WSSC 38 a sentence of 10 years imprisonment was imposed after applying a starting point of 16 years imprisonment, in Police v Ah Mann [2011] WSSC 116 a sentence of 10 years imprisonment was imposed after applying a starting point of 15 years imprisonment, in Police v Pualii [2011] WSSC 119 a sentence of 11 years imprisonment was imposed after applying a starting point of 15 years imprisonment, in Police v Sione [2011] WSSC 128 a sentence of 15 years imprisonment was imposed after applying a starting point of 18 years imprisonment, and in Police v Filipo [2011] WSCA 127 a sentence of 18 years imprisonment was imposed after applying a starting point of 12 years imprisonment.
  3. In the final analysis, the facts of each case determine the appropriate sentence for that case. The facts of the present case are quite different from the facts of the cases mentioned in para 21 above. The same sentencing approach may be applied to different cases of rape but because the facts of each case differs from the other, the resulting sentences may not be the same. In other words, consistency in the approach applied to different factual situations does not mean the same as consistency in results.
  4. Reference may also be made to para [31] of the judgment in R v AM [2010] NZCA 114 regarding a general comparison of sentencing for sexual offending in New Zealand, England and Wales, Canada, and Australia.

Conclusion


  1. The accused is sentenced to 7 years and 3 months imprisonment. Anytime he has spent in custody is to be deducted from that sentence.

-----------------------------
CHIEF JUSTICE


Solicitor
Attorney General's Office, Apia, for prosecution
Ainuu Law Firm for accused


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